Thursday, June 18, 2015

Today in Reed v. Town of Gilbert, Arizona, (Sup. Ct., June 18, 2015), the U.S. Supreme Court unanimously held that an Arizona town's sign ordinance that placed greater restrictions on temporary directional signs than on other signs violates the First Amendment. The challenge to the ordinance was brought by a local church whose Sunday services are held at various temporary locations and which posted signs each weekend displaying the Church name and the time and location of the next service. Justice Thomas' majority opinion (joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito and Sotomayor) concluded that the provisions placing greater restrictions on temporary directional signs than on signs conveying other messages (such as ideological and political signs) "are content-based regulations of speech that cannot survive strict scrutiny." It emphasizes:

Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.

It added:

a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.

Justice Alito, joined by Justices Kennedy and Sotomayor, filed a short concurring opinion setting out examples of content-neutral alternatives.

Justice Breyer filed a separate opinion concurring in the judgment saying that while the regulation here does not warrant strict scrutiny, it is nevertheless invalid. He explains:

The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification.

Justice Kagan (joined by Justices Ginsburg and Breyer) also filed an opinion concurring in the judgment, saying in part:

The Town of Gilbert’s defense of its sign ordinance—most notably, the law’s distinctions between directional signs and others—does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.... The absence of any sensible basis for these and other distinctions dooms the Town’s ordinance under even the intermediate scrutiny that the Court typically applies to “time, place, or manner” speech regulations. Accordingly, there is no need to decide in this case whether strict scrutiny applies to every sign ordinance in every town across this country containing a subject-matter exemption.

I suspect this Court and others will regret the majority’s insistence today on answering that question in the affirmative. As the years go by, courts will discover that thousands of towns have such ordinances, many of them “entirely reasonable.”